Article 8 of the Convention did not impose a general and unqualified obligation on local authorities in relation to the condition of their housing stock

SUMMARY

These were conjoined appeals by two local authority tenants and their children from decisions of HH Judge Milford QC and HH Judge Geddes QC, both of whom had ruled that there was nothing in the Human Rights Act 1998 that affected the obligation of a local authority to one of its tenants where the dwellinghouse in question was unsuitable for occupation by reason of condensation, damp or mould caused by some defect in design and that there was no other common law or statutory remedy available to the claimants by which they could require the local authority to remedy the defect in design.

The agreed facts of each appeal were that the tenant and her family occupied a council house which, due to a defect in design, was so adversely affected by condensation, damp or mould as to be "virtually uninhabitable". The claimants contended that the condition of the dwellinghouses interfered with their civil rights under Article 8 of the European Convention on Human Rights.

The issues for determination on the appeals were: whether s.6 of the 1998 imposed an independent statutory duty upon local housing authorities, as public authorities, "to do what was necessary" to comply with Article 8; whether s.11 of the Landlord and Tenant Act 1985 which imposed an obligation on a landlord to keep the structure of premises in repair should now be construed in accordance with the Human Rights Act (Section 3) to impose an obligation to keep the premises in good condition; whether it was necessary to imply a term into a tenancy agreement under which a public authority provided social housing to the effect that the landlord keep the premises in good condition, or at least in a condition that enabled the tenant to perform her obligations; and in any event, whether the landlord had a right to enter the premises for the purpose of carrying out works for the purpose of remedying a design defect, so as to give rise to a duty under s.4 Defective Premises Act 1972.

Held:

There was nothing in the Strasbourg jurisprudence to support the proposition that s.6 of the 1998 Act, in conjunction with Article 8, imposed a general and unqualified obligation on local authorities in relation to the condition of their housing stock. That was not to say that there would never be cases where a local authority that had let a property that was unfit for human habitation or prejudicial to health would be in breach of the positive duty imposed by s.6 and Article 8. However, no such breach had been established on these appeals, which had proceeded on points of principle only. Section 3 of the 1998 Act did not require any different interpretation of s.11 of the 1985 Act. Section 3 of the 1985 Act did not permit the court to re-interpret s.11 of that Act so as to give a tenant greater rights than Parliament had been held to have intended. There was no basis for implying any further term at common law that would require the landlord to remedy a defect in design. It was not open to the courts to regard an obligation on the landlord to remedy defects that made the premises unfit for human habitation as a necessary correlative to the obligations on the tenant to reside there or in respect of internal decoration. Works required to remedy a defect in design were not works of "repair", giving that word the meaning that it had to bear in this context. It followed that s.4 of the 1972 Act was not engaged.

Appeals dismissed.

COMMENT (March 1 2002)

This is an interesting decision in the light of the ruling by HH J Havery QC in Marcic v Thames Water Utilities Limited [2001] 3 All ER 698 that the failure of the defendant to carry out works to bring to an end flooding on the claimant’s home was a breach of Article 8 which it failed to justify. (This ruling has now been upheld by the Court of Appeal, albeit on common law rather than Convention grounds: see Marcic v Thames Water Utilities Ltd. Marcic could be distinguished on the grounds that that case involved damage which was arguably the direct result of the defendant’s commission, or omission, whereas liability for defective premises could not be laid at the door of the local authority in Lee (since Murphy, Caparo etc). The precise implications of the Court of Appeal's ruling in Marcic have yet to be worked out; suffice it to say here that if the Court in this case had upheld the appellants arguments it would effectively extend the positive obligation under Article 8 into what is a quasi-social and economic right, imposing a duty on government agencies to supply services up to a certain standard. Not only is such an extension undesirable, but it would undermine the statutory regime governing housing (as the Court of Appeal observed) as well as the common law of negligence, requiring the claimant to establish proximity, foreseeability and reasonableness before mounting an action for defective premises.